State v. Brinkerhoff

• Decision Date: 26 March 1886
• Citation: 17 S.W. 109
• Parties: STATE <I>ex rel.</I> KINGSBURY v. BRINKERHOFF.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

Page 109

17 S.W. 109

STATE ex rel. KINGSBURY v. BRINKERHOFF.¹

Supreme Court of Texas.

March 26, 1886.

Appeal from district court, McLennan county; EUGENE WILLIAMS, Judge.

Suit in the nature of a quo warranto, on relation of R. H. Kingsbury, Jr., against J. F. Brinkerhoff, to determine defendant's right to hold the office of recorder of the city of Waco. Petition dismissed. Plaintiff appeals. Affirmed.

R. H. Kingsbury, for appellant. Clarke & Dyer and Rimes & Blair, for appellee.

STAYTON, J.

It is unnecessary to consider whether officers of municipal corporations are such officers as are embraced in section 40, art. 16, of the constitution, which declares that "no person shall hold or exercise, at the same time, more than one civil office of emolument," etc., for, if this be admitted to be so, even then it is too clear that the judgment rendered is correct. It appears that the respondent was duly elected secretary of the city of Waco on April 5, 1885, and that he qualified on the 13th of the same month, since which time he has continuously discharged the duties of that office. On the same day that he qualified as city secretary he was appointed recorder, qualified the next day, and since that time has continuously discharged the duties of the latter office, and this proceeding was instituted for the purpose of inquiring into his right to hold and exercise the powers of recorder. The respondent became city secretary on April 13th, for on that day he qualified, and on the next day he accepted the office of recorder, which, of itself, operated an abandonment of the former office, if he cannot hold both. This we understand to be the rule. Biencourt v. Parker, 27 Tex. 562; Ex parte Call, 2 Tex App. 497; People v. Carrique, 2 Hill, 97; Stubbs v. Lee, 64 Me. 195; Cotton v. Phillips, 56 N. H. 223; People v. Whitman, 10 Cal. 38; Kerr v. Jones, 19 Ind. 353; Creighton v. Piper, 14 Ind. 182; Dailey v. State, 8 Blackf. 329; State v. Hutt, 2 Ark. 282. It is contended, however, that the respondent had the right to elect which office he would hold, and that, from the character of the two offices, and from the fact that he continued to act as city secretary, it must be held that he elected to hold that office, and therefore ought not to be permitted to hold the office of recorder. It is true that the respondent had the right to elect which office he would hold, but in law his election was made when he qualified as recorder; and if, under the constitution, he could not hold both offices, then the office of city secretary became vacant. As said in Stubbs v. Lee: "The public has a right to know which is held and which is surrendered. It should not be left to chance, or to the uncertain whim of the office-holder to determine. The general rule, therefore, that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former, is one certain and reliable, as well as one indispensable for the protection of the public." People v. Carrique, 2 Hill, 97. The fact that the respondent may have been appointed by the city council to the office of recorder on the same day, but before he qualified as city secretary, is a matter of no importance. His subsequent qualification as recorder, under the appointment previously made, clothed him with the powers and imposed upon him the duties of that office. His appointment was not invalid, but could become operative, if he could not hold both offices, only by abandoning the office to which he had qualified, which we hold he did, if...